' Accused/petitioners charged for an offence under section 324/34, P.P.C. In case F.I.R. No,5, dated 10-1-1996 registered at Police Station Township, Bannu seek their release on bail. The concession of bail was extended to them by the Ilaqa Magistrate vide his order, dated 5-9-1996, but on an application of the complainant, their bail was recalled by the learned Additional Sessions Judge, Bannu per his order, dated 18-9-1996. Hence this Court (bail application).
2. Brief facts of the case are that on the eventful day after morning prayer,the complainant and his brother named Shahbazar were on their way to Bannu City and after walking for a while, his brother went aside to answer the call of nature. Meanwhile, the accused/petitioners duly armed with .303 bore rifles and daggers emerged from a nearby tree and simultaneously opened fire at the complainant and gave him dagger blows as a result of which he was injured. Thereafter, all the accused decamped from the scene of occurrence. The crime was stated to be witnessed by Shahbazar, his brother and motive was given to be previous quarrel between the parties.
3. Perusal of the impugned order of the learned Additional Sessions Judge, Bannu reveals that due to the injuries sustained by the victim, the functions, power and capacity of his Tibia and Ulna had been permanently impaired which persuaded him to recall the bail order passed by the Court below.
4. At the very outset, Pir Liaqat Ali Shah, Advocate appearing on behalf of the complainant, raised a preliminary objection about the jurisdiction of the forum below on the ground that the weapon of offence used in the crime being .303 bore rifle which falls within the definition of "Assault Rifle" as per Schedule appended with Suppression of Terrorist Activities (Special Courts) Act, 1975 and, therefore, both the Courts below were coram non judice.
5. The aforesaid objection was repelled by the petitioner's counsel bystating that in the Schedule, description of klashnikov, G-III rifle has been given and if .303 bore rifle was intended to be included in the said Schedule by the Law Maker, then it would have been specifically mentioned thereunder and in the present circumstances the same cannot be included/linked within the category of an "Assault Rifle".
6. I have anxiously considered arguments advanced on either side. "Assault Rifle" includes in the Schedule appended to the offences triable by the Special Courts constituted under the provisions of Terrorist Activities (Special Courts) Act, 1975 by Ordinance I of 1990 promulgated on 17-3-1990 given retrospective effect from 7-11-1988. Offences under the Arms Ordinance are punishable with imprisonment not exceeding seven years and as such are triable by the ordinary Courts of Magistrates. Due to increase of crime ratio in our country and to bring down the subversive activities of the criminals, Suppression of Terrorist Activities (Special Courts) Act, 1975 was enforced and the arms and ammunition oftenly used in commission of terrorist activities were included in the Schedule appended therewith and the offences committed thereby were exclusively made triable by the said Special Courts. Clause (c) to the Schedule of the aforesaid Act provides that:- "Any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No,XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket, or a light or heavy automatic or semi-automatic weapon such as klashnikov, a G-III rifle or any other type of assault rifle."
It is thus clear that after the words "heavy automatic or semi-automatic weapon", the classification of weapon such as klashnikov, a G-III rifle is defined and not a specific reference to .303 bore rifle is given, but instead, the words "any other type of assault rifle" are mentioned. The interpretation of the words "any other type of assault rifle" is not defined independently and hence the same could not be read in sequence and reference to the preceding lines of the clause (ibid). Thus, a weapon which is not automatic or semi-automatic and not of a type of klashnikov or G-III rifle could not be included in the campus 'of any other assault rifle'. Hence .303 bore rifle or all other such weapons which are not automatic or semi-automatic or alike to G-III and klashnikov do not fall under the Schedule referred above. The Courts below were, therefore, perfectly right in exercising their jurisdiction.
7. Learned counsel for the petitioners in support of his petition stressed that--
(i) that the injuries on the person of the complainant were caused with sharp-edged weapon as per medical report;
(ii) that firing by all the three accused-petitioners is alleged but no recovery of any empty from the spot;
(iii) that all the injuries are on the lsigs, knee joint and ankle joint and not on the vital part of the body and hence it could not be gathered that an attempt to kill the complainant was made;
(iv) that the learned Additional Sessions Judge had wrongly drawn inference that as the complainant had been permanently impaired, the offence falls under section 336, P.P.C. i,e, Itlaf-i- Salahiyyat-e-Udu which falls under the prohibitory clause of section 497, Cr.P.C. But, vide order, dated 27-11-1996 the injured was referred to Standing Medical Board for examination and its report is as under:-- 'Old multiple fractions are well-united, healed and accused needs no further treatment' ."
8. From perusal of the report reproduced above, it is crystal clear that the view taken by the Additional Sessions Judge was not correct and his impugned order was not justified.
9. Both the learned counsel for the complainant and State, however, conceded that from the circumstance of the case together with the stamps of injuries sustained by the victim, it is not a case of attempted murder, but strongly contended that the accused/petitioners are directly charged in a promptly lodged report, the occurrence having taken place in a daylight, the complainant being an aged person of seventy years old badly beaten by them, the petitioners are not entitled to the concession of bail. Further, they remained fugitive from law for about seven months which too disentitle them for the concession of bail.
10. No doubt the petitioners are directly charged for the injuries sustained by the complainant in a broad daylight occurrence, but keeping in view the facts that no positive role is attributed to each one, ocular evidence contradicts the site plan as no recovery was effected from the spot though all the three are charged for firing at the victim together with the fact that the ground which influenced the learned Additional Sessions Judge was not proved valid by the Standing Medical Board constituted for examination of the complainant, I am of the considered opinion that it is a case of further inquiry. There are, therefore, reasonable grounds exist for believing that the accused/petitioners are not guilty of the offence charged for and there are sufficient grounds for further inquiry into their guilt.
11. In view of the facts and circumstances of the case narrated above, the petitioners are held entitled to the concession of bail. Their prayer for bail is thus accepted and they are admitted to bail provided they furnish bail bond in a sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.